Bette Rose Schwager v. Telecheck Services, Inc. D/B/A Telecheck, a First Data CompanyFirst Data CorporationClay SpitzJim SikorskiSteve Shaper And Lori Graesser

• Court: Court of Appeals of Texas
• Decided: December 19, 2002
• Docket: 14-01-00099-CV
• Status: Published

Opinion

Appellee=s Motion for Rehearing Granted in Part and Overruled in Part; Opinion Issued July 18, 2002 Withdrawn; Affirmed in Par

Appellee=s Motion for Rehearing Granted in Part and Overruled in Part; Opinion Issued July 18, 2002 Withdrawn; Affirmed in Part, Reversed and Remanded in Part, and Opinion on Motion for Rehearing filed December 19, 2002.

In The

Fourteenth Court of Appeals

_______________

NO. 14-01-00099-CV

BETTE ROSE SCHWAGER, Appellant

V.

TELECHECK SERVICES, INC. D/B/A TELECHECK, A FIRST

DATA COMPANY; FIRST DATA CORPORATION; CLAY SPITZ;

JIM SIKORSKI; STEVE SHAPER; and LORI GRAESSER, Appellees

___________________________________________________________________

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No.  99-00043

___________________________________________________________________

O P I N I O N   O N   M O T I O N

F O R   R E H E A R I N G

Appellee=s motion for rehearing is granted in part and overruled in part; the opinion issued in this case on July 18, 2002, is withdrawn; and the following opinion is issued in its place.

In this employment dispute, Bette Rose Schwager appeals a summary judgment in favor of TeleCheck Services, Inc. d/b/a TeleCheck, A First Data Company (ATeleCheck@), First Data Corporation (AFirst Data@), Clay Spitz, Jim Sikorski, Steve Shaper, and Lori Graesser on various grounds.  We affirm in part and reverse and remand in part.

Background

Schwager filed a lawsuit against TeleCheck, her former employer, First Data, TeleCheck=s parent company, and TeleCheck executives Sikorski, Spitz, Shaper, and Graesser, asserting claims for breach of contract, fraud, conversion, wrongful termination, defamation, constructive fraud, and intentional infliction of emotional distress.^[1]  Appellees moved for, and were granted, summary judgment on all of Schwager=s claims.

Standard of Review

A traditional summary judgment may be granted if the motion and summary judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response.  Tex. R. Civ. P. 166a(c).  A Ano-evidence@ summary judgment may be granted if the moving party contends that there is no evidence of one or more essential elements of a claim on which the non-movant has the burden of proof at trial and the non-movant fails to produce summary judgment evidence raising a genuine issue of material fact.  Id. 166a(i).  In reviewing a summary judgment, we take all evidence as true, make all reasonable inferences, and resolve any doubts, in the non-movant=s favor.  Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

                                           Inadequate Opportunity for Discovery

Schwager=s first issue^[2] contests the summary judgment on the ground that her request for continuance was outstanding and discovery was totally inadequate.  Schwager requested a continuance in her response to appellees= motion for summary judgment and contends  that the trial court ignored it even though appellees failed to produce documents and persons for deposition and committed other discovery abuses and fraud. 

A summary judgment respondent complaining of an inadequate opportunity for discovery must file either an affidavit or verified motion for continuance, explaining the need for further discovery.^[3]  Schwager=s request for a continuance, set forth only in a paragraph of her unverified summary judgment response, and not supported by her affidavit or other summary judgment evidence, did not satisfy this requirement.

Moreover, the reasons given in Schwager=s response for requesting a continuance were that: (1) the case was fraught with (unspecified) discovery disputes and appellees failed to produce much of the requested (unspecified) information which would provide evidence of Schwager=s claims; and (2) Schwager spent six months on appellees= removal  of the case to federal court and remand.  However, in that the case had been on file for more than 19 months before the summary judgment hearing, it would have been within the trial court=s discretion^[4] to deny her request for continuance even if the foregoing unsubstantiated contentions had been set forth in an affidavit or sworn motion.  Accordingly, the first issue is overruled.

                                              Objections to Appellees= Affidavits

Schwager=s second issue contests the summary judgment on the ground that appellees= three affidavits were false, misleading, and conclusory, and omitted material facts.  This issue further asserts that perjury should be assigned to those affidavits.  Except as to the contention of conclusoriness, these assertions are well beyond the scope of our review of a summary judgment and will not be considered further.  Regarding the alleged conclusory nature of the affidavits, to the extent we can identify the statements claimed to be conclusory,^[5] they are not material to any of the grounds on which we are affirming the summary judgment. Accordingly, this issue is overruled.

                                                    Affirmative Defense of Fraud

Schwager=s third issue contests the summary judgment on appellees= affirmative defense of fraud on the grounds that appellees failed to raise an issue of fact on each element of fraud, Sikorski=s affidavit was false, and the documents in support of his affidavit show that Sikorski committed fraud.  However, an affirmative defense of fraud was not a ground upon which TeleCheck=s motion sought summary judgment.  Therefore, issue three presents nothing for our review and is overruled.

                                                             Schwager=s Claims

Schwager=s fourth issue contests the summary judgment on her causes of action for breach of contract, fraud, constructive fraud, conversion, wrongful termination, defamation, and intentional infliction of emotional distress.  We address these sub-issues in turn.

                                                             Breach of Contract

Appellees= motion for summary judgment asserted that Schwager=s breach of contract claim failed because she was paid the commissions she was due under her 1997 written compensation agreement (the A1997 agreement@).^[6]  In challenging the summary judgment on this claim, Schwager asserts: (1) TeleCheck did not pay her the entire five percent commission required by a 1993 oral compensation agreement (the A1993 agreement@), a 1994 written compensation agreement (the A1994 agreement@), and the 1997 agreement (collectively, the Acompensation agreements@); (2) the determination of which of these agreements governs the allegedly unpaid commissions is a question of fact; (3) the 1997 agreement fails for lack of mutuality and consideration.^[7]

Taking the foregoing contentions slightly out of order, the 1994 and 1997 agreements each state, A[a]s of the effective date, the following plan will cover the full compensation package provided by [TeleCheck] . . . to [Schwager].@^[8]  By this language, each agreement superseded the preceding agreement pertaining to Schwager=s compensation from TeleCheck.  As TeleCheck asserted in its reply to Schwager=s summary judgment response and on appeal, because this language of the agreements is unambiguous, extrinsic evidence was not admissible to show a contrary intent.  See Nat=l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex. 1995).  Therefore, Schwager has not demonstrated that the determination of which compensation agreement governs each of the allegedly unpaid commissions is a question of fact.

Schwager further contends that the compensation agreements lacked mutuality and consideration because they were subject to change at any time by TeleCheck.  However, the fact that her compensation agreements were subject to change at any time by TeleCheck does not prevent them from being enforceable.  See Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).  By signing the compensation agreements, acknowledging her awareness of the changes in the terms of her compensation arrangement, and then continuing her employment with that knowledge, Schwager accepted and became bound by those changes as a matter of law.  See id.  Following her performance of the specified tasks, TeleCheck became obligated to pay her the corresponding compensation.  Therefore, Schwager has demonstrated no lack of mutuality or consideration.

However, with regard to the amount of commissions, the summary judgment evidence contains conflicting (and conclusory) affidavits as to whether Schwager received the commissions she was owed under the compensation agreements.^[9]  In addition, the summary judgment evidence motion, responses, and evidence do not enable us to conclusively determine the correct amount or division of commissions.  Therefore, a fact issue remains, and Schwager=s challenge to the summary judgment is sustained to this extent.

                                                                         Fraud

Schwager alleged that TeleCheck committed fraud by promising to pay her the commissions due under the compensation agreements with the intent not to do so.  TeleCheck=s motion for summary judgment asserted that Schwager had no evidence that it made any promises with no intent to perform them.

A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.  Formosa Plastics Corp. v. Presidio Eng=rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).  However, the mere failure to perform a contract is not evidence of fraud.  Id.  Moreover, the evidence must be relevant to the promisor=s intent at the time the representation was made.  See id.

In this case, Schwager=s summary judgment response asserted that TeleCheck=s intent not to perform could be inferred from its breach of the compensation agreements and outrageous conduct in response to her inquiries regarding commissions.  However, her response referenced no specific evidence.  Moreover, the alleged breach of the agreements is not itself evidence of an intent not to perform, and unspecified outrageous conduct in response to her inquiries is not probative of TeleCheck=s intent at the time the agreements were entered.  Accordingly, we overrule her challenge to the summary judgment against her fraud claim.

                                                             Constructive Fraud

Schwager=s petition alleged that, as her employer, TeleCheck committed constructive fraud by: (1) not fully disclosing the ramifications of, or dealing openly with her regarding, her compensation agreements; (2) breaching its fiduciary duty by refusing to pay her agreed commissions; (3) telling her that she could not keep her job if she did not sign the 1997 agreement; and (4) giving her no adequate consideration to sign the 1997 agreement.  TeleCheck=s motion for summary judgment asserted that it could not be liable to Schwager for constructive fraud because no fiduciary duty exists between an employer and employee, as alleged in this case.

Constructive fraud is a breach of some legal or equitable duty that the law declares fraudulent because it tends to deceive others, violate confidences, or injure public interests; and most often arises in a breach of a fiduciary or confidential relationship.  Vickery v. Vickery, 999 S.W.2d 342, 377 (Tex. 1999).  Fiduciary duties arise as a matter of law in certain formal relationships, such as attorney-client, partnership, and trustee relationships.  Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).  Confidential, or informal fiduciary, relationships may arise when parties have dealt with each other in such a manner for a long period of time that one party is justified in expecting the other to act in her best interest.  Id.; Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287-88 (Tex. 1998).

A fiduciary duty encompasses a duty of good faith and fair dealing, but is a greater duty in that it requires the party with that duty to place the interests of the other party above his own.  See Crim Truck & Tractor Co. v. Navistar Int=l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992).  There is no duty of good faith and fair dealing in the employment context.  City of Midland v. O=Bryant, 18 S.W.3d 209, 216 (Tex. 2000).  Therefore, it follows that there is no formal or informal fiduciary duty in the employment context such as in this case.

Although not alleged in her petition, Schwager=s summary judgment response and affidavit asserted that TeleCheck had a fiduciary or confidential relationship with her because she had relied on appellees to correctly calculate, inform her of, and pay her the commissions she was due.^[10]  Although the existence of a confidential relationship is usually a question of fact, it becomes a question of law when the issue is one of no evidence.  Crim Truck, 823 S.W.2d at 594.  A confidential relationship is not created lightly.  Associated Indem., 964 S.W.2d at 288.  Because every contract includes an element of confidence and trust that each party will perform faithfully, a confidential relationship is not created by the fact that one party trusts and relies upon the other or that the relationship has been a long and cordial one.  Crim. Truck, 823 S.W.2d at 594-95.  Not even every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship.  Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176-77 (Tex. 1997).  To impose an informal fiduciary duty in a business transaction, the special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.  Associated Indem. 964 S.W.2d at 288.

Under the foregoing legal standards, the facts relied upon by Schwager to evidence a confidential relationship with TeleCheck fail as a matter of law to do so.^[11]  Therefore, we overrule her challenge to the summary judgment against her claim for constructive fraud.

                                                                    Conversion

Schwager=s petition alleges conversion in that Sikorski took a portion of her commissions and claimed it as his own and other TeleCheck executives failed to correct this problem after being made aware of it.  TeleCheck=s motion for summary judgment asserted that unpaid commissions are not subject to a cause of action for conversion.

Conversion is the wrongful exercise of dominion and control over another=s property in denial of or inconsistent with his rights.  Green Int=l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997).  Money is subject to conversion only when it can be identified as a specific chattel, and not where an indebtedness may be discharged by the payment of money generally.^[12]  Thus, an action for conversion of money will lie where the money is: (1) delivered for safekeeping; (2) intended to be kept segregated; (3) substantially in the form in which it is received or an intact fund; and (4) not the subject of a title claim by its keeper.^[13]  Therefore, withholding or diverting funds from commissions owed does not support a claim for conversion.^[14]

Schwager challenges the summary judgment against her conversion claim on the ground that the unpaid commissions are a specific and identifiable sum of money as reflected on the commission reports prepared by TeleCheck.  However, it is not the sum or amount of money that must be identifiable but the specific funds from which that sum must be paid.^[15]  Although Schwager=s compensation agreements provide that her commissions are measured by a percentage of certain TeleCheck revenues, they do not specify any particular body of funds from which those commissions must be paid.  Therefore, we overrule Schwager=s challenge to the summary judgment against her conversion claim.

                                                          Wrongful Termination

Schwager=s petition alleged that she was terminated wrongfully in retaliation for, or discrimination of, her physical disability.^[16]  TeleCheck=s motion for summary judgment asserted that Schwager=s claims for wrongful termination were barred because: (1) there is no common law claim for wrongful termination of an at-will employee; (2) her discrimination claims were either not timely asserted or outside the scope of the complaints she filed with the Texas Commission on Human Rights (ATCHR@) and the Equal Employment Opportunity Commission (AEEOC@).  In challenging the summary judgment against her wrongful termination claim, Schwager asserts that: (1) she has both a statutory and common law discrimination or retaliation claim; and (2) a fact issue exists whether her termination was for good cause, i.e., a non-discriminatory or retaliatory reason.

A complaint of unlawful employment practices must be filed with the EEOC or TCHR within 180 days after the unlawful practice occurrs.  Tex. Lab. Code Ann. ' 21.202(a) (Vernon 1996); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). This requirement is mandatory and jurisdictional.  Specialty Retailers, 933 S.W.2d at 492.  The 180 days begin to run when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.  Id. at 493.

In this case, the only EEOC or TCHR complaint in the summary judgment evidence was signed by Schwager on February 10, 1998.  It states that she had been denied a reasonable accommodation and prevented from continuing her employment since April 16, 1997.  To the extent the complained of employment practice began at that time and continued without change, as the complaint indicates, the complaint was required to be filed within 180 days of that time.  However, it was instead filed nearly ten months later, and no other complaint was filed alleging any subsequent discriminatory act, such as her termination. Although Schwager contends that the jurisdictional requirement for her statutory discrimination claim was nevertheless satisfied by filing a complaint with the EEOC within 300 days, she has not cited any authority allowing 300 days to file a complaint with the EEOC or any evidence of when her complaint was actually filed with the EEOC.  Therefore, we overrule her challenge to the summary judgment against her statutory discrimination claim.

With regard to Schwager=s common law discrimination claim, we agree with appellees that she has not shown that a common law claim for wrongful termination of an at-will employee exists except under Sabine Pilot,^[17] which Schwager did not assert.  Accordingly, we overrule Schwager=s challenge to the summary judgment against her common law discrimination claim.

                                                                    Defamation

Schwager alleged that Graesser defamed her in a letter (the Aletter@) by falsely accusing Schwager of theft, fraud, unlawful activity, extortion, and lying.  TeleCheck=s motion for summary judgment asserted that the statements in the letter were protected by the judicial proceeding privilege and were true or substantially true.  Schwager=s summary judgment response asserted that the privilege did not apply because there was no pending or threatened judicial proceeding and that the truthfulness of the statements was a fact issue.

Communications made in any aspect of a judicial proceeding will not serve as a basis for a civil action for defamation, regardless of the negligence or malice with which they are made.  James v. Brown, 637 S.W.2d 914, 916-17 (Tex. 1982).  This privilege extends to an attorney=s statements made in contemplation of and preliminary to judicial proceedings.  Watson v. Kaminski, 51 S.W.2d 825, 827 (Tex. App.CHouston [1st Dist.] 2001, no pet.); Randolph v. Walker, 29 S.W.3d 271, 278 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Whether a statement relates to a proposed or existing judicial proceeding is a question of law.  Watson, 51 S.W.2d at 827; Randolph, 29 S.W.3d at 278.  All doubt should be resolved in favor of the communication=s relation to the proceeding.^[18]

In this case, at the time the letter was sent, there is no evidence that Schwager had filed a lawsuit against TeleCheck or expressly threatened to do so.  However, before the letter was sent, Schwager had filed a formal discrimination complaint, which is a prerequisite to a lawsuit for statutory discrimination,^[19] Schwager=s attorney had requested that communication with Schwager be made through his office, and attorneys for the two sides had been in ongoing communication regarding Schwager=s claims.  Moreover, in accordance with the request to direct communications to her lawyer, the letter was sent by Graesser, an attorney for TeleCheck, to Schwager=s lawyer, communicating that Schwager was being terminated and stating TeleCheck=s reasons for doing so.  This lawsuit relates directly to the matters in dispute between the parties at the time the letter was sent and to which the letter pertained.  In light of the increasingly adversarial relationship that had developed between them, their resort to legal counsel, the filing of a formal complaint and ultimately a lawsuit,  there can be little doubt that a judicial proceeding was reasonably contemplated at the time the letter was sent, and any such doubt must be resolved in favor of the letter relating to the subsequent proceeding.  Therefore, the statements in the letter were subject to the judicial proceeding privilege, and Schwager=s challenge to the summary judgment against her defamation claim is overruled.

                                        Intentional Infliction of Emotional Distress

Schwager argues that she is entitled to a claim of intentional infliction of emotional distress because: (1) what is utterly intolerable in a civilized community is a question for the jury; (2) Sikorski=s abusive conduct toward her was extreme and outrageous and caused her great stress in her job which resulted in depression, anxiety, headaches, and upset stomach.  TeleCheck=s motion for summary judgment asserted that, even if Schwager=s allegations were true, they did not rise to the required levels of outrageousness of conduct or severity of emotional distress.

To support a claim for intentional infliction of emotional distress, a defendant=s conduct must: (1) be intentional or reckless; (2) be extreme and outrageous; and (3) cause the plaintiff to suffer severe emotional distress.  Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001).  Whether a person=s conduct is Aextreme and outrageous@ is a question of law.  Id.  To satisfy this element, conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.  Id.  It is the severity and regularity of conduct that determines whether it is extreme and outrageous.  GTE Southwest, Inc. v. Bruce, 998 S.W.3d 605, 617 (Tex. 1999).  In addition, emotional distress must be the intended or primary consequence of the defendant=s conduct.  Id. at 611.  Accordingly, this tort does not lie for ordinary employment disputes, and the kind of extreme conduct necessary to even raise a fact question of intentional infliction in the workplace exists only in the most unusual circumstances.  City of Midland, 18 S.W.3d at 217.  Although generalizations are difficult, it appears from the Supreme Court=s opinion in GTE that insulting or vulgar behavior in the workplace is not extreme and outrageous unless it reflects a pattern of physically threatening or grossly abusive conduct intended primarily to humiliate or terrorize an employee.  See 998 S.W.2d at 611-17.

In support of Schwager=s allegation of extreme and outrageous conduct in this case, her summary judgment response asserts:

Schwager=s supervisor, Jim Sikorski, not only yelled and screamed at her on a frequent basis, but humiliated her in front of her co-workers.  Mr. Sikorski was abusive in telling Mrs. Schwager that other women were Acunts.@  Mrs. Schwager told Mr. Sikorski that she did not like him referring to women by that name and that it made her extremely upset when he would use that type of language. . . .  Mr. Sikorski also cursed and yelled at Mrs. Schwager regarding her job performance. . . .  On one occasion, Mr. Sikorski even said, AFuck you for all the shit you have caused.  You either go to Denver or you are fired.@

Although these allegations are supported by Schwager=s affidavit and are unquestionably objectionable, they do not rise to the level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress according to our reading of GTE.  Therefore, Schwager=s challenge to the summary judgment against that claim is overruled.

Accordingly, the trial court=s judgment is affirmed as to all of Schwager=s claims against appellees except the portion of her breach of contract claim against TeleCheck relating to whether Schwager has been paid the amount of commissions to which she is entitled under the respective compensation agreements, which portion of the summary judgment is reversed and remanded to the trial court for further proceedings.

/s/        Richard H. Edelman

Justice

Judgment rendered and Opinion filed December 19, 2002.

Panel consists of Justices Yates, Edelman, and Draughn.^[20]

Do Not Publish C Tex. R. App. P. 47.3(b).

---

^[1]           Although Schwager=s second amended petition also asserted negligence and tortious interference claims, that petition was later struck by the trial court as being untimely filed, and Schwager does not assign error to that ruling.  Therefore, we do not address her negligence and tortious interference claims.

^[2]           Because the discussion of the issues in Schwager=s brief is rambling, disjointed, and multifarious, we will confine our consideration to what we can discern as the thrust of each issue.

^[3]           See Tex. R. Civ. P. 166a(g) (AShould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may . . . order a continuance to permit . . . discovery to be had . . . .@); id. 251 (Anor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@); id. 252 (AIf the ground of such application [for continuance] be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known;  that such testimony cannot be procured from any other source . . . .@); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (holding that where party complaining of inadequate opportunity for discovery failed to file affidavit or verified motion for continuance explaining need for discovery, it was within trial court=s discretion to deny more time).

^[4]           See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (reviewing denial of properly requested motion for continuance for abuse of discretion).

^[5]           The discussion of this issue in Schwager=s brief contains the following contentions regarding the conclusory nature of TeleCheck=s affidavits:

[Regarding the statement in Sikorski=s affidavit that Schwager was paid all the commissions owed to her under the 1997 agreement:]  The fact that Sikorski did not state the dates that Schwager entered into the 1994 and 1997 agreement [sic] proves the false and conclusionary [sic] nature of this statement.  There is no written authorization in the record of this case that anyone is entitled to any of Schwager=s sales commissions.  Sikorski=s refusal to be specific in this paragraph also proves that this statement is false and conclusionary. . . .

[Regarding other portions of Sikorski=s affidavit:]  Sikorski=s affidavit is false and conclusionary in his statements that Schwager was restricted from performing the essential functions of her job, that the 1997 Sales Compensation Agreement between Schwager and TeleCheck, Inc. completely superceded [sic] and replaced the 1994 Agreement, and that Schwager violated company policy.  Sikorski=s statement that Schwager=s actions violated company policy is not admissible as it is conclusionary. . . .

[Regarding the statement in Spitz=s affidavit that Schwager could not perform the essential functions of her position:]  The statement is false and conclusionary and is self-contradictory.  Spitz had no knowledge that Schwager could not perform the essential functions of her position, as he did not know what they were. . . .

[Regarding the Sikorski, Spitz, and Graesser affidavits generally:] Schwager objects to the Trial Court considering as evidence the preceding affidavits.  Assumptions and conclusions unsupported by factual evidence is [sic] not proper summary judgment evidence.

^[6]           This was a traditional, rather than no-evidence, ground for summary judgment.

^[7]           Schwager also asserts that novation is not a valid basis for summary judgment because appellees failed to plead it as an affirmative defense and they did not admit to a debt, fraud, breach of contract, and conversion.  However, because it is not material to our disposition regarding the breach of contract claim, we do not address her challenge regarding novation.

^[8]           The 1997 agreement further provides, AThis Plan supersedes any and all Plans between Employee and the Company prior to the effective date of this plan.@

^[9]           Sikorski=s affidavit stated, ASchwager was paid all of the commissions owed to her under the terms of the 1997 Agreement, through her last day of work.@  Schwager=s affidavit stated: AThrough my review of the TRS Sales Commission Reports, provided by Telecheck in this litigation, I have determined that I was not paid the full amount of the commissions which were due me under the said 1994 and 1997 written Sales Compensation Agreements.@

^[10]          Because we conclude that these unpled contentions have no merit, we need not address whether they were tried by consent.

^[11]          Schwager does not complain on appeal that any of TeleCheck=s grounds for summary judgment were invalid as asserting a failure to state a cause of action.  See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998) (stating that a court may not grant summary judgment for failure to state a cause of action without first giving the plaintiff an opportunity to replead).  Accordingly, we do not address that issue.  See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (reversing court of appeals=s reversal of summary judgment on ground not complained of by appellant).

^[12]          Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 161 (Tex. App.CHouston [14th Dist.] 1996, writ denied); Estate of Townes v. Townes, 867 S.W.2d 414, 419 (Tex. App.CHouston [14th Dist.] 1993, writ denied).

^[13]          Newsome, 940 S.W.2d at 161 (holding that specific funds in a particular account captured by a writ of garnishment on a bank were subject to a claim of conversion); Townes, 867 S.W.2d at 419 (holding that funds which were held in and withdrawn from a particular account and were intended to be kept segregated as an intact fund were subject to claim for conversion); Newman v. Link, 866 S.W.2d 721, 726 (Tex. App.CHouston [14th Dist.] 1993) (holding that settlement funds from which attorney deducted his fee but failed to pay the ad litem fee decreed in the judgment were subject to claim for conversion), writ denied, 889 S.W.2d 288 (Tex. 1994) (per curiam).

^[14]          See Wheat v. Am. Title Ins. Co., 751 S.W.2d 943, 944 n.1 (Tex. App.CHouston [1st Dist.] 1988, no writ) (noting that judgment for unpaid commissions on title policies could not have been rendered on a conversion theory); Gronberg v. York, 568 S.W.2d 139, 144 (Tex. Civ. App.CTyler 1978, writ ref=d n.r.e.) (holding that judgment based on claim for return of funds wrongfully withheld from commissions could not be sustained on theory of conversion).

^[15]          See Newsome, 940 S.W.2d at 161; Townes, 867 S.W.2d at 419; Newman, 866 S.W.2d at 726.

^[16]          Schwager=s summary judgment response further alleged that she was terminated wrongfully for reporting the illegal theft by Sikorski of her commissions.  However, as TeleCheck=s reply to that response noted, Texas law does not recognize a common law cause of action for retaliatory discharge of a private, i.e., non-governmental, employee who reports the illegal activities of others in the workplace.  See Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401, 403 (Tex. 1998).  Moreover, although Schwager=s petition also alleged she was fired due to her age, she assigns no error on appeal regarding that claim.  Therefore, we do not address it.

^[17]          See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).

^[18]          See Watson, 51 S.W.2d at 827; Randolph, 29 S.W.3d at 278 (holding that letter referring to unlawful conduct and phone conversation accusing unlawful conduct were privileged).

^[19]          See Specialty Retailers, 933 S.W.2d at 492.

^[20]          Senior Justice Joe L. Draughn sitting by assignment.